Whether pursuing a default judgment against an opposing party, or you have been served with a default, it is important to understand the definition and implications of a default, as well as the differences between an entry of default and a default judgment. Discuss these nuances with your Orlando Divorce Attorney to ensure you understand each step in this process.
Overall, default will occur in cases where a party has failed to respond to an initial complaint, petition, or court order. Florida provides, that a Defendant has 20 days after receiving service of a complaint to file an answer, or 60 days if service has been waived. When a party fails to respond within the statutory timeline, the petitioner may seek an entry of default. The Florida Rules of Civil Procedure, Rule 1.500 governs the process and requirements of Defaults.
An entry of default is the first step to obtaining a default judgment against a party, and allows you to proceed in the action without further notice or input from the opposing party. An entry of default can come in two forms, an entry by the clerk or an entry by the judge. A clerk’s entry of default may occur if the opposing party “has failed to file or serve any paper in the action.” This means, that if a Defendant, or spouse has filed any paper, such as an answer or motion, the clerk may not enter a default against them. The clerk will simply look on the case docket to determine if any document has been filed. If none is seen, the clerk will enter a default.
In comparison, the court may enter a default against a defendant when they have “failed to plead or otherwise defend as provided by [the Florida Rules of Civil Procedure] or any applicable statute or any order of court.” In cases where the court is required to enter a default rather than a clerk, usually is dependent upon if any document has been filed by the opposing party. If a document has been filed, the court will need to assess the extent of the pleading or answer as well as the statutory timeline, to determine if a default should be entered. If a party has filed a document and the court determines an entry of default is appropriate, they will be served with notice of the application for default.
During the time between filing a Motion for Entry of Default and when a default is entered, the opposing party may still answer or file a motion. If action by the opposing party is taken during this time, the clerk will note in the docket that default is inappropriate. However, after a default has been entered, in order to renter the case, the defendant must file a motion to vacate the default providing for adequate grounds for their untimely filings.
In contrast, a Default Final Judgment may only be entered by a Judge. A default judgment is necessary to recover the monetary or equitable relief sought in your initial pleadings. The court will enter a default judgment when the defendant is not a “minor or incompetent person unless represented,” and the relief sought is a certain sum. Therefore, it is important to properly plead the relief you are seeking in your initial petition, as the court will look to this as a significant factor during a default judgment hearing.
Both entry of default and a default judgment can be crucial to your legal matter. Therefore, understanding the implications of these rulings are essential and should be discussed with your Orlando Divorce Attorney to ensure you understand your options in relation to these topics.
Speaking to an attorney at our Orlando office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 407-512-0887 or complete an online contact form to get in touch with a member of our team today.